Case o' The Week: Crawford and Kozinski, a Patriotic Pair - Esparza and Testimonial Evidence

  Nothing more patriotic for the Fourth of July than a case upholding core constitutional rights (and a remarkable article advocating for greater justice in our system of criminal law and procedure).

United States v. Esparza, 2015 WL 3938093 (9th Cir. June 29, 2015), decision available here.

Players: Decision by Judge Nguyen, joined by Judge Schroeder and DJ Zouhary. Big win for AFD Kent D. Young, Federal Defenders of San Diego, Inc.

Hon. Judge Jacqueline Nguyen

Facts: Driving a Chevy, Esparza was stopped at a border checkpoint. Id. The registered car owner was “Diana Hernandez.” Id. Over fifty kilos of marijuana were found in hidden compartments in the car. Id. The Border Patrol sent Hernandez a notice that the car had been seized because of the drug stop. Id. A month later, Hernandez sent the DMV a “release of liability” form and a signed statement claiming that she had sold the car to Esparza before the stop. Id. at *2. At trial, the government successfully admitted these documents despite the fact that Hernandez was available (in the courthouse) but not called to testify. Id. The defense presented evidence that the car had been sold through a different chain of individuals not including Esparza, that Esparza was an unwitting courier, and that Hernandez had created or been given the DMV transfer / release of liability documents only after learning of the border stop. Id. at *3. Esparza was convicted and sentenced to 24 months. Id. at *4.

Issue(s): “The question that we must decide is whether the government’s use of Hernandez’s hearsay statement violated the Confrontation Clause.” Id. at *1.

Held: “We hold that because Hernandez’s statement was ‘testimonial,’ see Crawford v. Washington, 541 U.S. 36 . . . (2004), Esparza had the right to confront her as a witness. His rights were violated because he was not given an opportunity to do so. We also conclude that the admission of Hernandez’s statement was not harmless beyond a reasonable doubt, and thus we vacate Esparza’s conviction and remand.” Id.

Of Note: What is a “testimonial” statement? That’s been the core Confrontation Clause question since Crawford, and it is a question upon which Judge Nguyen spends a fair amount of time. Id. at *4. In a thoughtful analysis, the Court reviews the evolution of “testimonial” from the Supreme Court’s decisions in Crawford, through Davis, Clark, and Melendez-Diaz. Judge Nguyen concludes that Hernandez’s DMV assertions were functionally identical to live, in-court testimony and were therefore testimonial. Id. at *5. It is an accessible Crawford discussion with a welcome “testimonial” holding that leads to an ultimate reversal.

How to Use: The disputed docs were “public records created for the administration of DMV affairs,” complained the government, and thus within a hearsay exception. Id. at *6. Not so here, counters Judge Nguyen, distinguishing Ninth authority that had found DMV docs non-testimonial. Id. Use Esparza for the proposition that the Crawford analysis is context specific, and that docs (like DMV records) don’t necessarily dodge the “testimonial” label just by virtue of their origin. Id. (“That her statement is contained in documents that might otherwise qualify under a hearsay exception for public records makes no difference to our analysis.”)

                                               

For Further Reading: Read it and weep (with joy).

Hon. Judge Alex Kozinski

  In Criminal Law 2.0, 44 Geo. L.J. Ann. Rev. Crim. Proc. (2015), Judge Alex Kozinski has penned a remarkable treatise pondering the injustices of the American justice system. 

  With exhaustive documentation, Judge Kozinski chronicles our system’s failures: from bad ID’s, to bad experts, from archaic jury procedures to prosecutorial misconduct, from Brady violations to over-incarceration, and the travesty of AEDPA. More importantly, he posits a bevy of reforms that are thoughtful, provocative, controversial, and ambitious (including a shout-out to NorCal CJA Attorney David Shapiro, and some sharp questions for the ND Cal USAO), id. at xxviii. 

  The piece is funny, frank, and tragic, and is crammed full of welcome resources and recommendations.

  This article should be required reading for law school students, judges, and prosecutors. For those of us who defend indigent folks, it is the most inspirational thing you’ll read all year – read it, enjoy it, use it, and most importantly, fight for His Honors’ proposed reforms. Article available here.

Image of American flag from https://s-media-cache-ak0.pinimg.com/originals/4c/b3/47/4cb347149fb092bf0e1b4db0a26c0705.jpg

Image of the Honorable Judge Jacqueline Nguyen from https://en.wikipedia.org/wiki/File:Judge_Jacqueline_Nguyen.jpg#/media/File:Judge_Jacqueline_Nguyen.jpg

Image of the Honorable Judge Alex Kozinski from https://s-media-cache-ak0.pinimg.com/236x/3b/3d/24/3b3d24a7ca3330f8756a02931588d5db.jpg

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Crawford + Apprendi = Magic -- Salvador (aka "Magic") Vera and Cop Expert Testimony

Hon. Judge Raymond Fisher

Mix Crawford and Apprendi, and good things are bound to follow.

United States v. Vera, 2014 WL 5352727(9th Cir. Oct. 22, 2014), decision available here.

Players: Decision by Judge Fisher, joined by Judges Noonan and Wardlaw.

Facts: Wiretaps on Vera and others produced an indictment alleging conspiracy to distribute a variety of drugs (although only 24 grams of heroin were actually obtained in the investigation). Id. at *1-*2. Seventy wiretap calls were the primary evidence at trial.. Id. at *2. Two case agents testified, mingled percipient witness testimony with “expert” testimony on gangs, and intercepted the meaning of the calls. Id. at *2-*3. The defense essentially conceded the conspiracy charge, and focused on the adequacy of the government’s proof of drug type and quantity. Id. The jury returned guilty verdicts, and special verdicts on drug type and quantity. Vera was sentenced to 30 years. Id. at *3.  

Issue(s): “This appeal requires us to revisit issues that arise when law enforcement officers offer both expert and lay opinion testimony interpreting the meaning of intercepted telephone calls.” Id. at *1. “The defendants argue that [the testimony of FBI Agent Lavis] was improper because it (1) impermissibly mixed lay and expert opinions; (2) served as a conduit for testimonial hearsay in violation of Crawford; (3) was not the product of reliable principles and methods; and (4) included impermissible lay opinions.” Id. at *7.

Held: “We again emphasize that such expert opinions must rest on reliable methodology; that such lay opinions may not be supported by speculation or hearsay, or interpret unambiguous, clear statements and that the jury must be instructed on how to appropriately evaluate each form of testimony offered by the officer.” Id. at *1.  

  “We affirm the admission of the gang testimony but reach a different conclusion regarding the testimony interpreting the recorded calls. Because that testimony intermingled lay and expert opinion, the district court’s failure to explain the distinction to the jury constituted plain error. Additionally, this intermingling resulted in the admission of improper expert and lay opinions, which also constituted plain error. Because these error affected the drug quantities found by the jury in a special verdict, and therefore the mandatory minimum sentences the defendants faced, they affected the defendants’ substantial rights and seriously affected the fairness of the judicial proceedings. Accordingly, we vacate the drug quantity findings and the defendants’ sentences.” Id.

Of Note: While this is a great decision on cop “experts” and wiretaps, note the less-welcome decision on gang testimony. Id. at *5. Judge Fisher distinguishes the Second’s great decision in Mejia, and finds no Crawford violation in a detective’s gang opinions. Id. Nonetheless, the opinion does shine in its principled analysis of cops’ testimony on drug jargon. Id. at *8. Investigating agents who also testify as “experts” must be accompanied by an instruction on the differences between percipient and expert testimony. Id. at *8. Moreover, FRE 701 and 702 foundation requirements apply to the testimony – no speculation, no reliance on hearsay, and no “interpretation” of clear and unambiguous statements.” Id.

How to Use: The rubber hit the road when Agent Lavis’s opinions on drug weights from the calls – made without adequate foundation – “resulted in admission of specific drug quantity opinions that did not rest on reliable methods.” Id. This intersection of Crawford and Apprendi meant that the high sentences based on quantity are vacated. Id. at *15. In a question of first impression, Judge Fisher concludes the remedy is to remand to a new sentencing jury. Id. Because agent “expertise” is so often abused in this area, this holding is particularly potent stuff and worth a close read in wiretap and drug conspiracy cases.

                                               

For Further Reading: The BOP has told the Sentencing Commission that it will take ten months for it to arrange for reentry programs for drug offenders to be released on Nov. 1, 2015. This means a deadline of signed release orders by January 15, 2015. For a summary of the numbers of folk facing this deadline, see Commission memorandum here. 

Image of the Honorable Judge Raymond Fisher from https://law.ucdavis.edu/blogs/deans/images/neumiller02.jpg

Steven Kalar, Federal Public Defender ND Cal. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Clears Way for More Hearsay - the Forfeiture Doctrine and Antoine Johnson

 “More likely than not.”

  Close enough, for Ninth, in disappointing new decision of first impression on the “forfeiture exception” to the Sixth Amendment. United States v. Antoine Lamont Johnson, 2014 WL 4473957 (9th Cir. Sept. 12, 2014), decision available here.

Players: Decision by Judge Schroeder, joined by Judge Clifton and D.J. Tunheim. Hard-fought appeal by SD Cal Defender alumni Ben Coleman and ND Cal CJA Attorney Ethan Balogh.

Facts: Antoine Lamont Johnson (with an unfortunate a.k.a. of “O Killer”) and Williams were convicted of armed robbery and murder, arising from the robbery of an armored truck. Id. at *1. At trial, the government introduced several out-of-court statements of an informant, Veronica Burgess. Id. She had come to police, explained she overheard the gang members planning the heist, and identified Johnson (and later, Williams) in photo spreads. Id. The government couldn’t locate her before trial, and argued that Johnson had threatened Ms. Burgess to prevent her from testifying. Id. at *1-*2. Burgess began receiving threats from gang members the day after defense counsel were permitted to disclose witness identities to the defendants. Id. at *2. The government argued that Johnson – who was in the SHU – had the ability to communicate through outside gang members through kites, and argued that the wording of the threats tied Johnson to the threatened witness. Id. 

  Defense counsel countered that other suspects had motives to threaten Burgess, and that Burgess had recanted her story to a private investigator. Id. The defense argued that the government had not shown by clear and convincing evidence that Johnson had made Burgess unavailable: the district court found the government had shown this link by a preponderance of evidence under FRE 804, and admitted the hearsay. Id. 

  Both Johnson and Williams were convicted and received life sentences. Id. at *3.

Issue(s): “This criminal appeal presents an issue of first impression for our circuit, post-Crawford.” Id. at *1. “The issue concerns the so-called ‘forfeiture exception’ to the Confrontation Clause of the Sixth Amendment. That exception applies when the defendant is responsible for the witness being unavailable. We must decide whether proof of the defendant’s responsibility for the witness’s absence must be shown by a preponderance of the evidence, as provided by Rule 804(b)(6) of the Federal Rules of Evidence, or, in light of Crawford and its progeny, by clear and convincing evidence.” Id.

Held: “With respect to the forfeiture exception, we join the circuits that have decided the issue since Crawford in holding that the standard has not changed and the provisions of the Rule continue to apply.” Id.

Of Note: This disappointing decision continues a Circuit split, with the Fifth (?!?) Circuit offering greater evidentiary protections than the Ninth. See id. at *4 (discussing United States v. Thevis). Ironically, “clear and convincing evidence” has traditionally been used in civil cases, regarding issues such as civil fraud or lost wills where a party is suspected of foul play. See Woodby v. INS, 385 U.S. 276, 287 & n.18 (1966). 

  It seems unfair that this lower preponderance standard for forfeiture eludes Crawford’s protections in the criminal context. It seems particularly unfair when the (hearsay) informant in this case had real credibility problems, and there was not clear and convincing evidence that Johnson was in fact responsible for Burgess’s unavailability.

How to Use: Preponderance ain’t much, but note that it still has to be proved. Judge Schroeder distinguishes a Second Circuit decision where the government had failed to explain how the incarcerated defendant intimated the witness. Id. at *7. In Johnson, the government offered a prison guard who claimed he saw the defendant passing kites – thereby showing a means of getting threats out of the jail. Id. 

  Don’t give up when faced with forfeiture as a hearsay exception, without forcing the government to prove this essential link.

                                               

For Further Reading: It isn’t enough to kill a witness – a defendant has to kill the witness with the intent of quieting the victim, for the forfeiture doctrine to kick in. See Giles v. California, 554 U.S. 353 (2008). A Texas prosecutor has penned a helpful piece explaining this intent requirement for the forfeiture exception. See “The forfeiture by wrongdoing doctrine nine years after Crawford, available here.

Image of the Hon. Senator Charles Schumer with “Snitches Get Stiches” T-shirt from http://www.buffalonews.com/apps/pbcs.dll/article?aid=/20130107/cityandregion/130109429/1174

Steven Kalar, Federal Public Defender ND Cal. Website at www.ndcalfpd.org

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